July 2010 Archives

In US v. Shabban, No. 07-3138, the court of appeals affirmed defendant's international parental kidnaping conviction, holding that the evidence was sufficient to persuade a reasonable juror of defendant's guilt beyond a reasonable doubt. However, the court remanded for an evidentiary hearing on defendant's ineffective assistance claim because the record was not conclusive on that issue.

In US v. Moore, No. 06-3085, the court of appeals affirmed defendant's conviction for making a materially false statement because he signed a false name on a Postal Service delivery form, on the ground that a statement is material if it has a natural tendency to influence, or is capable of influencing, either a discrete decision or any other function of the agency to which it was addressed.

Mogenhan v. Napolitano, No. 08-5457, involved an action against the Secret Service claiming that it violated the Rehabilitation Act by retaliating against plaintiff for filing a discrimination complaint and by failing to reasonably accommodate her disability. The court of appeals affirmed in part summary judgment for defendant, holding that there was no genuine dispute that the Service reasonably accommodated plaintiff's disability. However, the court reversed in part on the ground that the retaliatory actions plaintiff alleged might well have dissuaded a reasonable person from engaging in protected activity.

Boniface v. Dept. of Homeland Sec., No. 09-1095, involved a petition for review of a 2009 order of the Transportation Security Administration (TSA), an agency within the Department of Homeland Security, denying petitioner's request for waiver of a rule barring him from receiving a hazardous materials endorsement (HME) for his commercial driver's license because of his 1975 conviction for possession of an unregistered explosive device. The court of appeals granted the petition, on the grounds that 1) petitioner could not collaterally attack his conviction in pursuit of an HME; 2) the regulation at issue did not violate the Ex Post Facto Clause; but 3) the TSA was arbitrary and capricious in treating his appeal as a request for a waiver and simultaneously denying that request.

NLRB v. Fed. Lab. Rel. Auth., No. 09-1119, involved the National Labor Relations Board's petition for review of an order of the Federal Labor Relations Authority holding the Board engaged in an unfair labor practice, because it unlawfully refused to negotiate with the intervenor, the National Labor Relations Board Union, which the Authority had certified as the exclusive representative of a bargaining unit that included employees who reported to the Board and employees who reported to the General Counsel of the Board. The court of appeals granted the petition on the ground that the inclusion of Board-side and General Counsel-side employees in a single bargaining unit conflicted with the separation of authority mandated by section 3(d) of its charter, the National Labor Relations Act, 29 U.S.C. section 153(d), by requiring the General Counsel to bargain jointly with the Board over his employees' conditions of employment.

National Corn Growers Ass'n v. EPA, No. 09-1284, concerned a petition for review by the National Corn Growers Association, the National Sunflower Association, the National Potato Council, and FMC Corporation of the order of the Environmental Protection Agency (EPA) denying their objections to the EPA's Final Regulation revoking all "tolerances" for the pesticide carbofuran. The court of appeals granted the petition in part on the ground that the EPA's decision to revoke import tolerances for carbofuran was arbitrary and capricious. However, the court denied the petition in part on the ground that the EPA did not abuse its discretion by denying the petitioners' requests for a hearing on other issues, because they were not by themselves outcome-determinative.

Theodore Roosevelt Conservation P'ship v. Salazar, No. 09-5162, involved an action by environmental organizations filed for declaratory and injunctive relief arguing that the Bureau of Land Management's Record of Decision, its accompanying environmental impact statement (EIS), and subsequent drilling permits for a natural gas field violated the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act, and the Administrative Procedure Act.

LeFande v. Dist. of Columbia, No. 09-7080, concerned an action alleging that the District of Columbia Metropolitan Police Department (MPD) violated the First Amendment by terminating plaintiff's position with the MPD Reserve Corps in retaliation for his making protected speech. The court of appeals reversed the dismissal of the action on the ground that the district court erred in holding that plaintiff's speech did not relate to a matter of public concern and was therefore not protected by the First Amendment.

In US v. Battle, No. 08-3060, the court of appeals affirmed in part defendant's convictions for distributing crack cocaine, holding that the evidence was sufficient to show that defendant made the charged sales. However, the court vacated in part, on the ground that convictions on separate counts of distributing crack cocaine and of distributing the same drugs within 1000 feet of a school merge.

As the court wrote: "Michael Anthony Battle raises three challenges to his convictions for distributing crack cocaine. He contends that the district court erred in finding him competent to stand trial, that there was insufficient evidence to support the jury's verdict that the drugs he sold were crack, and that there was insufficient evidence that the sale took place within 1000 feet of a school. We reject all three contentions. We agree with both parties, however, that Battle's convictions on separate counts of distributing crack cocaine and of distributing the same drugs within 1000 feet of a school merge. We therefore remand for the district court to vacate the judgment on the former count."

In US v. Hall, No. 07-3036, the court of appeals affirmed in part defendant's convictions for one count of conspiracy to commit crimes against the U.S., two counts of bank fraud, four counts of wire fraud, and one count of money laundering conspiracy, on the grounds that 1) a trier of fact could reasonably infer from the trial evidence that during the time period of defendant's bank fraud, which was two to three years before the evidence showed federally insured status, the defrauded bank was in fact federally insured; and 2) the district court allowed sufficient cross-examination of the government's witnesses on their plea bargains to satisfy defendant's Sixth Amendment rights. However, the court reversed in part on the ground that the evidence was insufficient to support defendant's money laundering conviction because the alleged money laundering activity was part and parcel of the underlying bank fraud.

In US v. Burroughs, No. 08-3085, the D.C. Circuit affirmed in part defendant's sentence for sexual abuse of a minor, holding that 1) should an evidentiary hearing demonstrate the truth of everything defendant alleged, it still would not be reasonably probable that the district court would have granted him funding under the Criminal Justice Act; and 2) where, as here, the defendant altogether fails to inform the court that he opposes a condition of supervised release, plain error review applies. However, the court vacated in part, on the ground that, not knowing the court's reasons for imposing certain conditions of defendant's supervised release, finding the government's reasons unsupported by the record, and unable to identify any, those conditions needed to be vacated.

In People's Mohajedin Org. of Iran v. US Dept. of State, No. 09-1059, the D.C. Circuit granted a petition for review of the U.S. Secretary of State's designation of the Mojahedin-e Khalq Organization (MEK) and its aliases as a Foreign Terrorist Organization (FTO), on the ground that the Secretary failed to accord the MEK the due process protections outlined in the court's previous decisions.

Micei Int'l v. Dep't of Comm., No. 09-1155, involved a petition for review of the Department of Commerce's order sanctioning petitioner for alleged violations of export regulations. The court of appeals dismissed the petition on the ground that, because the International Emergency Economic Powers Act did not contain a direct review provision, review jurisdiction resided as a first matter in federal district court.

Blumenthal v. FERC, No. 09-1220, involved a petition for review of the Federal Energy Regulatory Commission's order approving a utility company's executive compensation. The court of appeals denied the petition on the grounds that 1) petitioner provided no good reason for the court to create a new due process right to an evidentiary hearing where none existed; and 2) even if the court would have used a different comparison group in determining the executive's compensation, the court could not say that FERC's decision to accept the utility's analysis was unreasonable.

Air Transp. Ass'n of Am. v. US Dept. of Transp., No. 08-1293, involved a petition for review of amendments to the Department of Transportation's (DOT) 1996 Policy Regarding Airport Rates and Charges allowing an airport to charge aircraft higher landing fees at peak times, a practice known as congestion pricing. The court of appeals denied the petition on the grounds that 1) the court deferred to the DOT's reasonable interpretation of the statutory prohibition of unjust discrimination; 2) setting landing fees that complied with all applicable statutes and regulations was within the scope of an airport authority's power as proprietor; and 3) because the amendments left only two variables to the discretion of the airport proprietor, and thus set out a nearly complete pricing algorithm, the DOT provided sufficient guidance.

Al-Adahi v. Obama, No. 09-5333, concerned a habeas petition by a detainee at Guantanamo Bay Naval Base. The D.C. Circuit reversed the grant of the petition on the grounds that 1) assuming arguendo that the government must show by a preponderance of the evidence that petitioner was part of al-Qaida; 2) the district court clearly erred in its treatment of the evidence and in its view of the law; and 3) when the evidence is properly considered, it becomes clear that petitioner was - at the very least - more likely than not a part of al-Qaida.

Butte Cty. v. Hogen, No. 09-5179, involved an action by a county under the Administrative Procedure Act challenging the Department of the Interior's approval of an Indian tribe's gaming ordinance. The court of appeals reversed summary judgment for defendants, holding that the Department failed to provide a reasoned explanation for its decision.

Pharmaceutical Care Mgmt. Corp. v. Dist. of Colum., No. 09-7042, involved an action seeking a declaration that Title II of the District of Columbia's Access Rx Act of 2004 was preempted by ERISA and various constitutional provisions. The court of appeals affirmed summary judgment for plaintiffs in part, holding that sections 48-832.01(a), (b)(1), and (d) of Title II were pre-empted by ERISA insofar as they applied to a pharmaceutical benefits manager (PBM) under contract with an employee benefit plan (EBP) because they "related to" an EBP. However, the court reversed in part on the ground that sections 48-832.01(b)(2) and (c) were not preempted by ERISA, however, because each may be waived by an EBP in its contract with a PBM.

As the court wrote: "The District of Columbia appeals the judgment of the district court holding Title II of the Access Rx Act of 2004, D.C. Code § 48-832.01 et seq., is pre-empted by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA). Pharm. Care Mgmt. Ass'n v. District of Columbia, 605 F. Supp. 2d 77, 84-88 (2009). We agree with the district court that §§ 48-832.01(a), (b)(1), and (d) of Title II are pre-empted by ERISA insofar as they apply to a pharmaceutical benefits manager (PBM) under contract with an employee benefit plan (EBP) because they relate to an EBP. Sections 48-832.01(b)(2) and (c) are not pre-empted by ERISA, however, because each may be waived by an EBP in its contract with a PBM. Accordingly, we affirm in part and reverse in part the judgment of the district court, and remand this matter for the district court to consider the Pharmaceutical Care Management Association's (PCMA) constitutional challenges to the provisions not pre empted by ERISA."

Odah v. US, No. 09-5331, involved a petition for habeas corpus by a detainee at Guantanamo Bay and his next friend. The court of appeals affirmed the denial of the petition, on the grounds that 1) petitioners' challenge to the preponderance of the evidence standard employed by the district court was foreclosed by precedent; 2) to show error in the district court's reliance on hearsay evidence, the habeas petitioner must establish not that it was hearsay, but that it was unreliable hearsay; and 3) the evidence was sufficient to show that petitioner was "part of' al Qaeda and Taliban forces.

As the court wrote: "Fawzi Khalid Abdullah Fahad al Odah, a detainee at Guailtanamo Bay, Cuba, and his next friend appeal from the district court's denial of his petition for a writ of habeas corpus. Appellants contend that the preponderance of the evidence standard employed by the district court is unconstitutional. That argument is foreclosed by precedent. Appellants further contend that the district court erred in admitting hearsay evidence. Again, controlling precedent is against them. Lastly, they argue that the evidence is insufficient to show that al Odah was "part of' al Qaeda and Taliban forces. We hold that the evidence is sufficient to support the district court's finding. Accordingly, we affirm the district court'sdenial of al Odah's petition for a writ of habeas corpus."

Davis v. Dep't of Justice, No. 09-5189, concerned a FOIA action seeking access to tape recordings made during an FBI investigation of a New Orleans mob boss. The court of appeals affirmed the denial of plaintiff's motion for attorney's fees, holding that the OPEN Government Act of 2007 did not retroactively allow plaintiff to recover fees.

District of Colum. v. Doe, No. 09-7026, involved an action claiming that a hearing officer exceeded his authority under the Individuals with Disabilities Education Act in modifying a disciplinary order imposed on defendant's child. The court of appeals reversed summary judgment for plaintiff, on the ground that the hearing officer modified the student's punishment only after finding that class exclusion would deny them a Free Appropriate Public Education.

In Judicial Watch, Inc. v. Bureau of Land Mgmt., No. 08-5379, a Freedom of Information Act action, the D.C. Circuit vacated an attorney's fees award to plaintiff and against the Bureau of Land Management, on the ground that the application of the 2007 Open Government Act to the case would have impermissible retroactive effects.

St. Luke's Hosp. v. Sebelius, No. 09-5352, concerned an action challenging the Secretary of Health and Human Services' denial of plaintiff's claim for reimbursement regarding a $2.9 million loss allegedly incurred by a Medicare provider when it merged with plaintiff through a "statutory merger." The court of appeals affirmed summary judgment for defendant, on the grounds that 1) the parties involved bargained in good faith and the consideration tendered reasonably reflected fair market value; and 2) the Secretary's application of the reasonable consideration requirement to the merger was not an impermissible retroactive imposition of a new standard as set out in PM A-00-76.

Related Resources

Full Text of Davis v. Dep't of Justice, No. 09-5189

Full Text of District of Colum. v. Doe, No. 09-7026

Full Text of Judicial Watch, Inc. v. Bureau of Land Mgmt., No. 08-5379

In US v. Hall, No. 06-3185, the court of appeals affirmed defendant's mail and wire fraud convictions, holding that 1) the district court's findings that defendant's decision to represent himself (with standby counsel) was knowing and voluntary met the criteria in Faretta v. California, 422 U.S. 806 (1975), for determining when a defendant may exercise his constitutional right to forgo his right to counsel; and 2) defendant failed to show a likelihood that the constructive amendment of the indictment affected the verdict or seriously affected the fairness, integrity, or public reputation of judicial proceedings. However, based on the government's concession, the court vacated and remanded defendant's sentence.

As the court wrote: "Robert L. Hall, Jr. was convicted by a jury of operating a "Ponzi" scheme for more than two years involving over a million dollars in which more than seventy investors lost all or a large portion of their investment. He challenges his conviction primarily on the ground that the district court failed to conduct an adequate inquiry to determine whether his waiver of his right to counsel under the Sixth Amendment to the U.S. Constitution was voluntary and knowing. Specifically, he maintains the inquiry failed to dispel his belief that his counsel was unprepared for trial. We hold that the district court's inquiry was constitutionally adequate because the district court's findings that Hall's decision to represent himself (with standby counsel) was knowing and voluntary met the criteria in Faretta v. California, 422 U.S. 806 (1975), for determining when a defendant may exercise his constitutional right to forgo his right to counsel. Viewing the proceedings as a whole, we reject Hall's assertion that he faced the constitutional dilemma of choosing between representing himself or accepting unprepared counsel. The district court's colloquy with Hall addressed his complaints by identifyingHall's false premise regarding discovery and by explaining how Hall's generalized complaints did not indicate defense counsel would not provide effective assistance."

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